School Dist. No. 3 v. Oellien

• Citation: 108 S.W. 529,209 Mo. 464
• Parties: SCHOOL DIST. NO. 3, TP. 45, RANGE 6 E., ST. LOUIS COUNTY et al. v. OELLIEN et al.
• Decision Date: 26 February 1908
• Court: United States State Supreme Court of Missouri

108 S.W. 529

209 Mo. 464

SCHOOL DIST. NO. 3, TP. 45, RANGE 6 E., ST. LOUIS COUNTY et al. v. OELLIEN et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. SCHOOLS AND SCHOOL DISTRICTS — ADDITIONAL GROUNDS — CONDEMNATION — AUTHORITY — STATUTE CONSTRUED.

Rev. St. 1899, § 9772 [Ann. St. 1906, p. 4483], provides that when "a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose," shall deem it necessary to have additional grounds for school purposes, the board of directors may proceed to condemn, etc. Held, that the law requires the assent of a majority of the qualified voters and taxpayers of the district, and not a mere majority of those present at a meeting and voting, before the board may proceed to condemn.

2. PLEADING — PETITION — SUFFICIENCY.

A petition alleging that "a majority of the qualified voters and taxpayers of said school district at said school meeting voted in favor of said proposition" is subject to a motion to make more definite and certain for the uncertainty whether the pleader meant a majority of the voters and taxpayers of the whole district or a majority of such as voted at the election.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by School District No. 3, Township 45, Range 6 E., of St. Louis county, Mo., and others, directors thereof, against Henry Oellien and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

R. H. Stevens, for appellants. Wm. F. Broadhead, for respondents.

GRAVES, J.

This action is one brought by a school district in St. Louis county, being joined therein by its board of directors, the purpose of which is to condemn for school purposes a small tract of land adjoining the present schoolhouse site. The petition recites the various steps taken to get an expression of the qualified voters and taxpayers of the district upon the proposition of acquiring this additional land. The proposition was submitted and voted upon at the annual school meeting. The petition then contains the following averment: "Plaintiffs further state that the clerk of said district on the 18th day of March, 1905, being 15 days before said annual meeting held on April 4, 1905, at the schoolhouse in said district, and a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition, and the said proposition was announced by the chairman of said annual meeting as carried." The petition then concludes with other proper allegations, and no part thereof is challenged except the portion above quoted. To this petition the defendants filed a motion requiring plaintiffs to make their petition more definite and certain, which motion is thus stated: "Now come Johanna C. C. Helmering, Lizzie Oellien, John Oellien, Henry Oellien, and Fred Oellien, defendants, by their attorney, and move the court to require the plaintiffs to make more definite and certain the following portion of plaintiffs' amended petition, on the second page thereof, and the eighth line, to wit: `And a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition (meaning the proposition to acquire additional grounds as necessary for school purposes), and the said proposition was announced by the chairman of said annual meeting as carried'—for the reason that said words and portion of said petition are indefinite and uncertain in meaning, and defendants are unable to know or understand from said clause whether it is intended thereby to aver that a majority of the qualified voters and taxpayers of said district actually and only voting at said meeting voted in favor of said proposition, or whether it is intended thereby to aver that the said qualified voters and taxpayers voting at said meeting for said proposition, constituted, and were, in fact, a majority of all the qualified voters and taxpayers of said school district whether voting or not." The foregoing motion was by the trial court sustained, and, the plaintiffs refusing to plead further, the court dismissed plaintiffs' petition, refused to appoint commissioners, and entered judgment for the defendants. After timely, but unsuccessful, motion for new trial, plaintiffs in due course of time perfected their appeal. Such is the case for determination here.

This action is bottomed upon the last clause of section 9772, Rev. St. 1899 [Ann. St. 1906, p. 4483], which reads: "And whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds for school purposes, then the board of directors may proceed to condemn and pay for any amount of land adjacent to the schoolhouse site, as provided in this section." In fact, there is no authority in law for the condemnation of additional land adjoining a schoolhouse site other than the statute hereinabove set out. The numerous allegations of the petition in question show an attempt, at least, to comply with the statute. The first and vital question to be determined is the meaning of the words "majority of the qualified voters and taxpayers of any school district," in the connection in which it is used. Do these words in this connection mean a majority of all the qualified voters and taxpayers of the district, whether present or absent at the time the vote is taken, or do they mean a mere majority of such qualified voters and taxpayers as are present at the time or meeting where the...